Bass v. Roberson, 526

• Decision Date: 17 January 1964
• Docket Number: No. 526,526
• Citation: 134 S.E.2d 157,261 N.C. 125
• Parties: J. Alton BASS v. Patsy Alease ROBERSON and C. A. Roberson.
• Court: North Carolina Supreme Court

Page 157

134 S.E.2d 157

261 N.C. 125

J. Alton BASS v. Patsy Alease ROBERSON and C. A. Roberson.

No. 526

Supreme Court of North Carolina.

Jan. 17, 1964

Everette L. Doffermyre and James M. Johnson, Dunn, for plaintiff.

Dupree, Weaver, Horton & Cockman, Raleigh, for defendants.

DENNY, Chief Justice.

This is a borderline case. However, when the evidence adduced in the trial below is considered in the light most favorable to the plaintiff, as it must be on a motion for judgment as of nonsuit, in our opinion it is sufficient to warrant its submission to the jury.

Since a new trial is awarded for reasons hereinafter stated, we refrain from a discussion of the evidence set forth in the record except to the extent deemed necessary in the disposition of other assignments of error. Powell v. Clark, 255 N.C. 707, 122 S.E.2d 706; Tucker v. Moorefield, 250 N.C. 340, 108 S.E.2d 637.

It is unlawful for a pedestrian to cross a street between intersections at which traffic signals are maintained unless there is a marked crosswalk between the intersections at which he may cross and on which he has the right of way over vehicular traffic, and his failure to observe the statutory requirements is evidence of negligence but not negligence per se. Templeton v. Kelley, 216 N.C. 487, 5 S.E.2d 555; Simpson v. Curry, 237 N.C. 260, 74 S.E.2d 649, and cited cases; Moore v. Bezalla, 241 N.C. 190, 84 S.E.2d 817; G.S. § 20-174.

Appellants' assignment of error No. 16 is to the following portion of the charge: 'Now, gentlemen, we have a statute in this State, General Statutes 20-146, that I wish to read to you in connection with the allegations of the complaint. It is as follows: Upon all highways of sufficient width, except one-way streets, the driver of a vehicle shall drive the same upon the right-hand half of the highway and shall drive a slowmoving vehicle as closely as possible to the right-hand edge or curb of such highway unless it is impractical to travel upon such side of said highway, except when overtaking or passing another vehicle, subject to the limitations applicable in overtaking and passing set forth in General Statutes 20-149 and 20-150, which I charge you you are not to be concerned with in this case. I further instruct you, gentlemen of the jury, that if the defendant violated this statute just read to you, that it would constitute negligence. I charge you in this connection, if the defendant Patsy Carroll operated her automobile to the left of the center of said street, on the left half of said street, and she was not in the act of overtaking and passing another vehicle at that time, and that it was practical for her at that time to drive on the right half of said street, that this would be evidence of negligence.'

The defendants in their further answer and defense allege that suddenly and without warning the plaintiff darted into the street immediately in front of the car being driven by defendant Patsy Carroll; that upon being confronted with this emergency which had been solely caused by the negligence of the plaintiff, defendant Patsy Carroll applied the brakes and 'made every effort to avoid the plaintiff and had brought the car to a virtual stop when it lightly bumped against the plaintiff causing him to fall to the pavement.'

It is further alleged that the plaintiff at the time of the accident was suffering from defective eyesight which kept him from observing approaching vehicles. Evidence was introduced by the defendants tending to support these allegations.

In our opinion, there was error in the foregoing instruction to the jury. The court pointed out that the jury was not to be concerned with the limitations applicable in overtaking and passing another vehicle as set forth in G.S. §§ 20-149 and 20-150.

The evidence of the driver of the Roberson car was to the effect that the Curtis Candy truck was parked half in and half out of the parking place, on the right-hand side of the street; that...